# Echeverri Mancilla v. Brennan Seng

> District Court, M.D. Florida · August 24, 2025

URL: https://www.frixlaw.com/law-library/cases/11127146

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** August 24, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

DIEGO FERNANDO
ECHEVERRI MANCILLA,

Plaintiff,

v. Case No: 6:24-cv-01065-PGB-DCI

MARY ELIZABETH BRENNAN
SENG,

Defendant.
/
ORDER
This cause is before the Court on Defendant Mary Elizabeth Brennan Seng’s
(“Defendant”)1 Motion to Dismiss pursuant to Federal Rule of Civil Procedure
12(b)(1) for lack of subject matter jurisdiction. (Doc. 16 (the “Motion”)). Plaintiff
Diego Fernando Echeverri Mancilla (“Plaintiff”) submitted a response in
opposition. (Doc. 19 (the “Response”)). Upon consideration, the Motion is due to
be granted.

1 Defendant Mary Elizabeth Brennan Seng is the Acting Director of the United States
Citizenship and Immigration Services (hereinafter, the “USCIS” or “agency”) Texas Service
Center.
I. BACKGROUND2
Plaintiff requests that this Court review a final agency decision denying his
Form I-140, Immigrant Petition for Alien Worker (“Form I-140”). (See generally

Doc. 13 (the “Amended Complaint”)).
Plaintiff, a citizen of Colombia, has resided in the United States as a
nonimmigrant investor. (Id. ¶ 1). On or about July 21, 2023, Plaintiff filed a Form
I-140 with the USCIS seeking classification as an Alien Worker eligible for a
National Interest Waiver, which permits the USCIS to waive certain job offer and

labor certification requirements for the advancement of national interest. (Id. ¶¶
10–11).
On or about December 16, 2024, the USCIS denied Plaintiff’s Form I-140,
finding that Plaintiff did not qualify for the National Interest Waiver using a three-
prong test laid out in the agency’s prior decision, Matter of Dhanasar, 26 I. & N.
Dec. 884 (USCIS AAO 2016) (the “Dhanasar test”). (Id. ¶ 11; Doc. 13-1). As a

result, Plaintiff filed the instant action, seeking judicial review of the USCIS’s
decision pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. §
706(2).3 (Doc. 13 ¶¶ 8, 23–24; see Doc. 1).

2 This account of the facts comes from Plaintiff’s Amended Complaint. (Doc. 13). The Court
accepts a plaintiff’s factual allegations as true when considering a motion to dismiss. See
Williams v. Bd. of Regents, 477 F.3d 1282, 1291 (11th Cir. 2007).

3 Alternatively, if USCIS were to vacate its December 16, 2024 decision, Plaintiff requests: (1) a
preliminary and permanent injunction pursuant to 28 U.S.C. § 1361 and 5 U.S.C. § 706(1); (2)
an issuance of a writ of mandamus pursuant to 28 U.S.C. § 1361 and 5 U.S.C § 706(1); and (3)
attorney’s fees and costs for this suit pursuant to the Equal Access to Justice Act 28 U.S.C. §
2412. (Doc. 13, ¶¶ 4–6). Given that this Motion is due to be granted, Plaintiff’s additional
requests will not be addressed.
In pursuit of judicial review, Plaintiff’s primary argument is that the USCIS,
in applying the Dhanasar test, “fail[ed] to provide any analysis as to how [it] came
to [the] conclusion Plaintiff did not meet the second and third prongs of the test. .

. . [given] the [denial] simply state[d] the law and then conclude[d] Plaintiff’s
proposed endeavor [did] not meet the requirements [for the National Interest
Waiver].” (Id. ¶ 12). Accordingly, “Plaintiff submits Defendant acted arbitrarily and
capriciously in failing to provide proper analysis and detailed explanation as
required by case law and its own regulations as to why it determined Plaintiff failed

to meet the [second] and [third] prongs of the Dhanasar test.” (Id. ¶ 20). As such,
Plaintiff requests that the Court review the agency’s decision as it has the
“authority . . . to set aside any decision found to be ‘arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with the law.’” (Id. ¶ 18); see 5 U.S.C.
§ 706(2).
In due course, Defendant filed the instant Motion to Dismiss, asserting that

the Court lacks subject matter jurisdiction over the matter. (Doc. 16). Plaintiff
responded in opposition (Doc. 19), and thus, the matter is now ripe for review.
II. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 12(b)(1), a party may challenge
subject matter jurisdiction on facial or factual grounds. Carmichael v. Kellogg,

Brown & Root Servs., Inc., 572 F.3d 1271, 1279 (11th Cir. 2009). For facial
challenges as here, the court looks to the face of the complaint and determines
whether the plaintiff sufficiently alleges standing. Stalley ex rel. U.S. v. Orlando
Reg’l Healthcare Sys. Inc., 524 F.3d 1229, 1232–33 (11th Cir. 2008). In doing so,
the court is limited to the complaint’s allegations and exhibits, which the court
must accept as true. Id. at 1232.

“When defending against a facial attack, the plaintiff has safeguards similar
to those retained when a Rule 12(b)(6) motion to dismiss for failure to state a claim
is raised[.]” Id. at 1233 (11th Cir. 2008) (quoting McElmurray v. Consol. Gov’t of
Augusta-Richmond Cnty., 501 F. 3d 1244, 1251 (11th Cir. 2007)). The court must
view the complaint in the light most favorable to the plaintiff and must resolve any

doubts as to the sufficiency of the complaint in the plaintiff’s favor. Hunnings v.
Texaco, Inc., 29 F.3d 1480, 1484 (11th Cir. 1994) (per curiam). However, though a
complaint need not contain detailed factual allegations, pleading mere legal
conclusions, or “a formulaic recitation of the elements of a cause of action,” is not
enough to satisfy the plausibility standard. Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007).

III. DISCUSSION
Plaintiff filed this action seeking judicial review of the USCIS’s denial of his
Form I-140 pursuant to the APA. (Docs. 1, 13).
The APA allows courts to “set aside” agency actions that are “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.” 5

U.S.C. § 706(2)(A). However, the APA does not grant courts jurisdiction to do so
when (1) a statute expressly “precludes judicial review,” or (2) even if Congress did
not explicitly preclude judicial review, there is an agency action that is “committed
to agency discretion by law.” Brasil v. Sec’y Dep’t of Homeland Sec., 28 F.4th 1189,
1192 (11th Cir. 2022) (quoting 5 U.S.C. § 701(a)(1)–(2)). “If a statute precludes
judicial review, [then] federal courts lack subject matter jurisdiction.” Id. at 1192

(citing Zhu v. Gonzales, 411 F.3d 292, 293 (D.C. Cir. 2005)).
Here, Plaintiff posits that the Court has authority to review Defendant’s
decision as it “acted arbitrarily and capriciously in failing to provide proper
analysis and detailed explanation” with respect to its decision denying Plaintiff’s
Form I-140. (Doc. 13, ¶¶ 18–20); see 5 U.S.C. § 706(2). To the contrary, Defendant

moves to dismiss Plaintiff’s Complaint for lack of subject matter jurisdiction
pursuant to Rule 12(b)(1). (See generally Doc. 16). Specifically, Defendant asserts
that the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., bars
judicial review of Plaintiff’s Form I-140 denial. (See id. at pp. 7–8). Ultimately, the
Court agrees with Defendant.
Section 1153(b)(2)(A) of the INA governs Form I-140 visa petitions for

professionals with advanced degrees or exceptional ability:
Visas shall be made available, in a number not to exceed 28.6
percent of such worldwide level . . . to qualified immigrants
who are members of the professions holding advanced
degrees or their equivalent or who because of their
exceptional ability in the sciences, arts, or business, will
substantially benefit prospectively the national economy,
cultural or educational interests, or welfare of the United
States, and whose services . . . are sought by an employer in
the United States.

8 U.S.C. § 1153(b)(2)(A); see also 8 C.F.R § 204.5(k)(1).
However, § 1153(b)(2)(B)(i) carves out an exemption to the job offer and
labor certification requirements for certain prospective aliens seeking immigrant
visas via a National Interest Waiver. In particular, § 1153(b)(2)(B)(i) provides that

“the Attorney General may, when the Attorney General deems it to be in the
national interest, waive the requirements of subparagraph (A) that an alien’s
services in the science, arts, professions, or business be sought by an employer in
the United States.” 8 U.S.C. § 1153(b)(2)(B)(i) (emphasis added); see also 8 C.F.R.
§ 204.5(k)(4)(ii). In its precedential decision Matter of Dhanasar, the USCIS

revised the framework for evaluating national interest waivers and promulgated a
three-prong test to analyze such requests. 26 I. & N. Dec. 884. Ultimately, after
applying the Dhanasar test, the USCIS denied Plaintiff’s request for a Form I-140
National Interest Waiver pursuant to its discretionary authority. (See Doc. 13-1,
pp. 1–2, 7; see also Doc. 13).
In support of Defendant’s Motion, Defendant argues that “the INA strips

[this Court’s] jurisdiction over the relief sought in Plaintiff’s Complaint” because §
1153(b)(2)(B)(i) confers discretionary authority to grant or deny a national
interest waiver to the Attorney General. (Doc. 16, pp. 7–11); see 8 U.S.C. §
1153(b)(2)(B)(i); 8 U.S.C. § 1252(a)(2)(B).
Under the title “Denials of discretionary relief,” § 1252(a)(2)(B) further

provides as follows:
Notwithstanding any other provision of law (statutory or
nonstatutory), including section 2241 of Title 28, or any other
habeas corpus provision, and sections 1361 and 1651 of such
title, and except as provided in subparagraph (D), and
regardless of whether the judgment, decision, or action is
made in removal proceedings, no court shall have
jurisdiction to review—

(i) any judgment regarding the granting of relief under
section 1182(h), 1182(i), 1229b, 1229c, or 1255 of
this title, or

(ii) any other decision or action of the Attorney
General or the Secretary of Homeland Security the
authority for which is specified under this
subchapter to be in the discretion of the
Attorney General or the Secretary of
Homeland Security [(“Secretary”)], other
than the granting of relief under section 1158(a) of
this title.

8 U.S.C. § 1252(a)(2)(B) (emphasis added). As such, in a unanimous opinion, the
Supreme Court held that § 1252(a)(2)(B)(ii) strips federal courts of their
jurisdiction to review immigration decisions by the Attorney General or Secretary
of Homeland Security that are “made discretionary by legislation.” Bouarfa v.
Mayorkas, 604 U.S. 6, 9, 17 (2024) (quoting Kucana v. Holder, 558 U.S. 233, 246–
47 (2010)).
Relying on Bouarfa, the Court turns its analysis to whether §
1153(b)(2)(B)(i)—the provision governing National Interest Waivers—confers the
Attorney General the type of discretionary authority that would bar judicial review
under 8 U.S.C. § 1252(a)(2)(B). See Bouarfa, 604 U.S. 6. The Eleventh Circuit in
Brasil held that it does. 28 F.4th at 1191. Unanimously, the Brasil court concluded
that § 1252(a)(2)(B)(ii) “precludes judicial review of a denial of a national interest
waiver under § 1153(b)(2)(B)(i).” Id.
Simply put, in the case at bar, Defendant denied Plaintiff’s Form I-140
petition for a National Interest Waiver pursuant to Defendant’s discretionary
authority to do so. (See Doc. 13, ¶ 11; see also Doc. 16, p. 2). Thus, the decisions in

Bouarfa and Brasil compel the conclusion that the judicial bar in §
1252(a)(2)(B)(ii) precludes judicial review of national interest waiver denials. See
Bouarfa, 604 U.S. 6; Brasil, 28 F.4th 1189.
Nevertheless, the Eleventh Circuit has warned that it has not completely
foreclosed judicial review of discretionary immigration decisions made by the

Attorney General or the Secretary. See T & B Holding Grp., LLC v. U.S. Att’y Gen.,
Sec’y, No. 23-13385, 2025 WL 1013414, at *3 (11th Cir. Apr. 3, 2025); Bouarfa v.
Sec’y, Dep’t of Homeland Sec., 75 F.4th 1157, 1161 (11th Cir. 2023); Kurapati v.
U.S. Bureau of Citizenship & Immigr. Servs., 775 F.3d 1255, 1259–60, 1262 (11th
Cir. 2014). According to the Eleventh Circuit, the Supreme Court’s decision in
Bouarfa “did not disturb our binding precedent holding that claims of procedural

error challenging a discretionary revocation decision are reviewable.” T & B
Holding, 2025 WL 1013414, at *3. In other words, claims that implicate the
Attorney General or the Secretary “fail[ing] to follow the correct procedure in
making a discretionary decision” are not barred from judicial review under §
1252(a)(2)(B)(ii). Id. at *2 (quoting Bouarfa, 75 F.4th at 1161).

That being said, the T & B Holding court emphasized that procedural claims
cannot be used to “sidestep the jurisdictional bar in [§] 1252(a)(2)(B) by reframing
a challenge to the agency’s denial of relief as a claim of procedural error.” Id.
(quoting Bouarfa, 75 F.4th at 1163). For example, a claim that the agency
“erroneously applied a standard that the agency had articulated to guide its
evaluation” equates to an argument that the agency “reached the wrong decision”

and thus, is not a procedural claim. Id. (quotation marks omitted). Similarly, a
claim that an agency decision is “arbitrary and capricious” under the APA because
the decision was “not supported by substantial evidence” is also not a procedural
claim as the claim merely boils down to an argument that the agency incorrectly
weighed the evidence and made a wrong decision. See id. at *3. In fact, there are

limited examples of acceptable “procedural” claims challenging discretionary
decisions that circumvent § 1252(a)(2)(B)(ii)’s jurisdictional bar. Id. at *4 (holding
that a claim was reviewable because the Administrative Appeals Office revoked a
visa petition in a manner in which it lacked the discretion to do so and failed to
comply with the board’s own binding precedent); Kurapati, 775 F. 3d at 1259–60,
1262 (finding that because the USCIS failed to provide the plaintiffs with prior

notice of their I-140 petition revocation, such a claim was procedural and thus,
reviewable by federal courts).
Here, Plaintiff argues that he “does not request review of the discretionary
decision of USCIS; rather [he] challenges the decision for [USCIS’s] failure to
provide analysis as to how the[ir] decision was reached.” (Doc. 19, pp. 2–3; see

Doc. 13). Specifically, Plaintiff argues that the agency’s decision denying Plaintiff’s
Form I-140 “fails to provide any analysis as to how Defendant came to [the]
conclusion Plaintiff did not meet the second and third prongs of the [Dhanasar]
test,” making Defendant’s actions “arbitrary and capricious, an abuse of discretion
and not in accordance with the law pursuant to [the APA].” (Doc. 13, pp. 3, 6; see
Doc. 19). In support of his argument, Plaintiff primarily cites to (1) 8 C.F.R. §

103.3(a)(1)(i), an agency regulation that requires application and petition denials
to be explained in writing and provide the specific reasons for a denial, and (2)
Matter of M-P-, 20 I. & N. Dec. 786 (BIA 1994), a Board of Immigration Appeals’
decision which called for motion denials to have written explanations and
reasonings. (Doc. 13, ¶¶ 13–14; see Doc. 19, pp. 3–5).

Ultimately, the agency’s denial letter assesses each prong of the Dhanasar
test, providing a detailed explanation as to why Plaintiff’s Form I-140 was denied.
(See Doc. 13-1, pp. 3–7). According to the USCIS, Dhanasar is a “precedent
decision,” which sets forth the framework for the agency to determine whether it
should employ its discretion and grant a National Interest Waiver petition under §
1153(b)(2)(B)(i). (Id. at p. 3); Matter of Dhanasar, 26 I. & N. Dec. 884, at 884.

Thus, by utilizing the Dhanasar test, Defendant is not acting outside, or contrary
to, its own established regulations. Id.; see Onyenanu v. Garland, No: 8:23-cv-
138-CEH-TGW, 2024 WL 5078098, at *5 (M.D. Fla. Dec. 11, 2024).
Although Plaintiff acknowledges that Defendant used the proper Dhanasar
test, Plaintiff hinges his argument for review on Defendant failing to provide

adequate reasoning as to why Plaintiff’s application did not fulfill the second and
third prongs of the Dhanasar test. (See Doc. 13, ¶¶ 12, 16–17; Doc. 19). Alas, the
denial letter indeed explains what qualitative attributes were missing in Plaintiff’s
application, providing written justification for the agency’s conclusion that certain
prongs of Dhanasar were not met. (See Doc. 13-1, pp. 5–7). Thus, such detailed
reasoning provides sufficient information regarding why Plaintiff’s application was

denied, and therefore, the denial does not run afoul of agency requirements or
precedent. See 8 C.F.R. § 103.3(a)(1)(i);4 Matter of M-P-, 20 I. & N. Dec. 786.
Consequently, scrutinizing the quality of Defendant’s reasoning with respect
to their application of Dhanasar and ultimate denial is purely substantive and not
procedural, which runs afoul of Eleventh Circuit precedent. See Brasil, 28 F. 4th

at 1194 (“Instead, [plaintiff] argues that USCIS erred in finding that [plaintiff] did
not meet the Dhanasar test. Section 1252(a)(2)(B)(ii) precludes judicial review of
that decision.”); T & B Holding, 2025 WL 1013414, at *3 (“Under the Supreme
Court’s Bouarfa decision, the district court lacked jurisdiction to consider any
substantive challenges to USCIS’s decision to revoke its prior approval of
[plaintiff’s] visa petition.”); see also Patel v. Garland, 596 U.S. 328, 347 (2022).

In sum, given the arguments raised in the case at bar and binding case law,
§ 1252(a)(2)(B)(ii) bars judicial review of Defendant’s discretionary decision to

4 Again, the Court clarifies that the INA does not preclude judicial review of procedural
“allegations that an agency failed to follow its own binding regulations,” such as those set forth
under 8 C.F.R. § 103.3(a)(1)(i). Kurapati, 775 F. 3d at 1262; see Avullija v. Dir., Citizenship &
Immigr. Servs., No. 21-13452, 2022 WL 2277394, at *4 (11th Cir. June 23, 2022). However,
as addressed herein, the Court will “scrutinize[] claims purportedly brought under exceptions
to the jurisdictional limitations of the INA that in fact seek substantive judicial review of
agency decisions.” Avullija, 2022 WL 2277394, at *4–5. The Court will not entertain such
claims that are merely an attempt to “circumvent the INA’s jurisdiction stripping provisions
by characterizing an abuse of discretion argument as a constitutional claim.” Id.
decline Plaintiffs Form I-140 for a National Interest Waiver pursuant to §
1153(b)(2)(B)().
IV. CONCLUSION
For these reasons, Defendant’s Motion to Dismiss (Doc. 16) is GRANTED.
The Amended Complaint (Doc. 13) is DISMISSED WITH PREJUDICE. The
Clerk of Court is DIRECTED to close the file.
DONE AND ORDERED in Orlando, Florida on August 24, 2025.

PAUL G.
UNITED STATES®@ISTRICT JUDGE
Copies furnished to:
Counsel of Record
Unrepresented Parties

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11127146. Public record. Not legal advice.